| 英文摘要 |
As aged society is now a reality in Taiwan, one of the most common civil procedure cases nowadays involves the house in which the couple lived during their marriage became a jointly inherited property due to the death of one of the spouses (who served as the registered holder of the house). And the surviving spouse was forced to move out of the house and adapt to a new environment due to the division of the inherited property. In order to allow the elderly surviving spouses to live in the original marital home, the legal system should specifically establish a law that grants them the legal right of habitation, allowing them to stay in their original house. The legal right of habitation is not created to allow the surviving spouse to obtain the ownership of the house. Rather, it only grants the right of permanent habitation. The percentage of the cash inheritance that the surviving spouse can obtain will thus be increased, fulfilling the need for the spouse’s living cost. While the function of this right is similar to the reverse mortgage, it challenges the traditional“unity of rights and powers”thinking of the inheritance division method—as the ownership of the real estate is separated from the usufruct, and both are owned by different subjects of right. The nature of right is close to the personal servitude of habitation. Since personal servitude does not exist in Taiwan’s property low, the establishment of the elderly surviving spouse’s right of habitation may refer to the revised 2018 Japanese Civil Code regarding the newly established legal right of habitation for the surviving spouse.
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